Goldsmith: Congress too passive in detainee law

Former Justice Department official Jack Goldsmith was the final speaker Tuesday at the Montpelier conference on terrorism and the law, and like Paul Clement, Goldsmith really hammered Congress for not doing more to define the limits of U.S. government action.

Specifically, Goldsmith said Congress needs to define who is detainable and who is not.

Goldsmith, who headed the Justice Department’s Office of Legal Counsel from 2003 to 2004 and wrote a book about it, wrote a paper in February arguing in favor of indefinite detention for some suspected or confirmed terrorists, and laid out a potential system for reducing the number of people in this system as well as trying to release them over time.

Goldsmith is a pariah to some on the right because of his decisions inside the Justice Department and to the left because of his general policy positions. At OLC, he defied the Bush White House, especially Vice President Cheney and his chief adviser, David Addington, by overturning memos that had defined torture so broadly that almost anything that didn’t kill a detainee would have been allowable. Goldsmith resigned soon after he took this action.

But while his actions won him some plaudits from human rights groups and some on the left, Goldsmith is also no dove. He said Tuesday that he does think the U.S. will need to detain some “for decades.”

He also thinks that however the enemy in the war against terrorism is defined, it should be broad enough to include U.S. citizens.

“I don’t think that’s going to happen. It’s too politically controversial. But it should happen,” he said Tuesday, speaking to the conference by video from Harvard, where he now teaches.

Goldsmith’s reason for this is, as he writes in his paper, that “designing detention procedures that are appropriate and legitimate for detaining dangerous U.S. citizen terrorists will ensure, and will credibly demonstrate to domestic courts and to the world, that the unusual detentions and the unusual procedures associated with them are legitimate and fair.”

As for Congress, Goldsmith said they have given “very little guidance so far” on who should be detained and how, but that the legislative branch needs to make these definitions and not the courts. So far, he said, they have “just punted to the courts … without giving them any guidance.”

Goldsmith argues in his paper that the enemy should be defined thus: “terrorists who are in the command structure of Al Qaeda and its co-belligerent terrorist organizations, and terrorists who directly participate in an armed conflict against the United States.”

Goldsmith also talks in the paper about raising the burden of proof over time if the government wants to continue holding certain detainees.

Despite President Obama’s rhetoric on closing Guantanamo and ending torture, Goldsmith said the new president is retaining most of the war powers claimed by President Bush since the September 11, 2001, attacks.

“He’s hardly renounced any of Bush’s powers. He’s asserted every single one of them, almost, since he got into office,” Goldsmith said.